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American Humanist Association v. Maryland-National Capital Park

United States Court of Appeals, Fourth Circuit

October 18, 2017

AMERICAN HUMANIST ASSOCIATION; STEVEN LOWE; FRED EDWORDS; BISHOP MCNEILL, Plaintiffs - Appellants,
v.
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Defendant-Appellee, THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OF MARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131, Intervenors/Defendants - Appellees, FREEDOM FROM RELIGION FOUNDATION; CENTER FOR INQUIRY, Amici Supporting Appellant, THE BECKETT FUND FOR RELIGIOUS LIBERTY; JOE MANCHIN; DOUG COLLINS; VICKY HARTZLER; JODY HICE; EVAN JENKINS; JIM JORDAN; MARK MEADOWS; ALEX MOONEY; STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEVADA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VIRGINIA; STATE OF WISCONSIN, Amici Supporting Appellee.

          ARGUED: December 7, 2016

         Appeal from the United States District Court of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:14-cv-00550-DKC)

         ARGUED:

          Monica Lynn Miller, AMERICAN HUMANIST ASSOCIATION, Washington, D.C., for Appellants.

          Christopher John DiPompeo, JONES DAY, Washington, D.C.; William Charles Dickerson, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellees.

         ON BRIEF:

          David A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington, D.C.; Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A., Baltimore, Maryland, for Appellants.

          Adrian R. Gardner, Tracey A. Harvin, Elizabeth L. Adams, MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Riverdale, Maryland, for Appellee Maryland-National Capital Park and Planning Commission; Noel J. Francisco, JONES DAY, Washington, D.C.; Roger L. Byron, Kenneth A. Klukowski, FIRST LIBERTY, Plano, Texas, for Appellees The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131.

          Patrick C. Elliott, FREEDOM FROM RELIGION FOUNDATION, Madison, Wisconsin, for Amici Freedom From Religion Foundation and Center For Inquiry.

          Eric C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP, Washington, D.C., for Amicus The Becket Fund for Religious Liberty.

          Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Haley N. Proctor, COOPER & KIRK, PLLC, Washington, D.C., for Amici Senator Joe Manchin and Representatives Doug Collins, Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan, Mark Meadows, and Alex Mooney.

          Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Julie Marie Blake, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amicus State of West Virginia; Steve Marshall, Attorney General of Alabama, Montgomery, Alabama, for Amicus State of Alabama; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona, for Amicus State of Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas, for Amicus State of Arkansas; Pamela Jo Bondi, Attorney General of Florida, Tallahassee, Florida, for Amicus State of Florida; Christopher M. Carr, Attorney General of Georgia, Atlanta, Georgia, for Amicus State of Georgia; Douglas S. Chin, Attorney General of Hawaii, Honolulu, Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho, for Amicus State of Idaho; Curtis Hill, Attorney General of Indiana, Indianapolis, Indiana, for Amicus State of Indiana; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas, for Amicus State of Kansas; Andy Beshear, Attorney General of Kentucky, Frankfort, Kentucky, for Amicus State of Kentucky; Jeff Landry, Attorney General of Louisiana, Baton Rouge, Louisiana, for Amicus State of Louisiana; Bill Schuette, Attorney General of Michigan, Lansing, Michigan, for Amicus State of Michigan; Timothy C. Fox, Attorney General of Montana, Helena, Montana, for Amicus State of Montana; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada, for Amicus State of Nevada; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota, for Amicus State of North Dakota; Michael DeWine, Attorney General of Ohio, Columbus, Ohio, for Amicus State of Ohio; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma, for Amicus State of Oklahoma; Peter F. Kilmartin, Attorney General of Rhode Island, Providence, Rhode Island, for Amicus State of Rhode Island; Alan Wilson, Attorney General of South Carolina, Columbia, South Carolina, for Amicus State of South Carolina; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota, for Amicus State of South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas, for Amicus State of Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah, for Amicus State of Utah; Mark R. Herring, Attorney General of Virginia, Richmond, Virginia, for Amicus Commonwealth of Virginia; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin, for Amicus State of Wisconsin.

          Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.

          THACKER, CIRCUIT JUDGE:

         In this case we are called upon to decide whether the Establishment Clause is violated when a local government displays and maintains on public property a 40-foot tall Latin cross, established in memory of soldiers who died in World War I. The district court determined that such government action does not run afoul of the Establishment Clause because the cross has a secular purpose, it neither advances nor inhibits religion, and it does not have the primary effect of endorsing religion.

         We disagree. The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George's County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the "wall of separation between Church and State." Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (internal quotation marks omitted). Accordingly, we reverse and remand.

         I.

         A.

         In 1918, some Prince George's County citizens started raising money to construct a giant cross, in addition to a previously established plaque, to honor 49 World War I soldiers from the county. The private organizers required each donor to sign a pledge sheet recognizing the existence of one god. It stated:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST, BUT THEIR SPIRIT LIVES TO GUIDE U.S. THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, "ONE GOD, ONE COUNTRY AND ONE FLAG, " WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

         J.A. 1168 (emphasis supplied).[1] Local media described the proposed monument as a "mammoth cross, a likeness of the Cross of Calvary, as described in the Bible."[2] Id. at 1115. The private organizers held a groundbreaking ceremony on September 28, 1919, at which time the city of Bladensburg owned the land.

         In 1922, the private organizers ran out of money and could not finish the project. So, the Snyder-Farmer Post of the American Legion (the "Post") assumed responsibility. At its initial fund raising drive, the Post had a Christian prayer-led invocation. Later that same year, on Memorial Day, the Post held memorial services around the unfinished monument, at which a Christian chaplain led prayer, and those in attendance sang the Christian hymn "Nearer My God to Thee." J.A. 2096. The Post ultimately completed the monument in 1925 and had Christian prayer services at the dedication ceremony, during which only Christian chaplains took part. No other religions were represented.

         Upon completion, the monument at issue stood four stories tall in the shape of a Latin cross located in the median of a three-way highway intersection in Bladensburg, Maryland (the "Cross"). Over the years, memorial services continued to occur on a regular basis at the Cross, and those services often included prayer at invocations and benedictions, and speaker-led prayers. Sunday worship services have at times been held at the Cross. Nothing in the record indicates that any of these services represented any faith other than Christianity.

         On March 1, 1961, Appellee Maryland-National Capital Park and Planning Commission (the "Commission"), a state entity, obtained title to the Cross and the land on which it sits. According to the Commission, it acquired the Cross and land in part because of safety concerns arising from the placement of the Cross in the middle of a busy traffic median. Therefore, the Commission purports that it assumed responsibility to "maintain[], repair[], and otherwise car[e] for" the Cross. J.A. 2529. The Commission has since spent approximately $117, 000 to maintain and repair the Cross, and in 2008, it set aside an additional $100, 000 for renovations.

         B.

         Today, the 40-foot tall Cross is situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg. The American Legion's symbol -- a small star inscribed with "U.S." -- is affixed near the top of the Cross, and an American flag flies in the vicinity of the Cross. The Cross sits on a rectangular base, with each side inscribed with one of four words: "valor, " "endurance, " "courage, " and "devotion." J.A. 1963 (capitalization omitted). Additionally, one side of the base contains a two-foot tall, nine-foot wide plaque listing the names of the 49 soldiers from Prince George's County whom the Cross memorializes, followed by a quote by President Woodrow Wilson.[3] However, the plaque is located on only one side of the base, which bushes have historically obscured.[4] Moreover, the plaque is badly weathered, rendering it largely illegible to passing motorists.

         The Cross is part of a memorial park honoring veterans in Bladensburg (the "Veterans Memorial Park"). A small sign titled "Star-Spangled Banner National Historical Trail" is located on a walking path approximately 600 feet north of the Cross. This small sign -- which, like the plaque at the base of the Cross, is not readily visible from the highway -- serves as the only formal marker identifying the area as a memorial park by stating, "This crossroads has become a place for communities to commemorate their residents in service and in death." J.A. 1870. The other monuments in the memorial park area include a War of 1812 memorial, a World War II memorial, a Korean and Vietnam veterans memorial, and a September 11th memorial walkway. These surrounding monuments are each located at least 200 feet away from the Cross, with the War of 1812 memorial located one-half mile away. No other monument in the area is taller than ten feet, and there are no other religious symbols in the park.

         Beyond the above description of the Cross and its placement in the park, various photographs from the record depicting the Cross are attached to this opinion. See J.A. 34 (image of the Cross before this case was filed), 1098 (closer image of the Cross), 1891 (image of the weathered plaque at the base of the Cross); Supp. J.A. 2 (overhead image of the Veterans Memorial Park).

         II.

         Appellants Steven Lowe, Fred Edwords, and Bishop McNeill are non-Christian residents of Prince George's County who have faced multiple instances of unwelcome contact with the Cross. Specifically, as residents they have each regularly encountered the Cross while driving in the area, believe the display of the Cross amounts to governmental affiliation with Christianity, are offended by the prominent government display of the Cross, and wish to have no further contact with it. Per their complaint, they believe "a more fitting symbol of [veterans'] sacrifice would be a symbol of the Nation for which they fought and died, not a particular religion." J.A. 25. Appellant American Humanist Association ("AHA") is a nonprofit organization that advocates to uphold the founding principle of separation of church and state. AHA is suing on behalf of its members.[5]

         As noted, Appellee Commission, a state entity, owns and maintains the Cross and the traffic island on which it stands. Appellees-Intervenors are the American Legion, the American Legion Department of Maryland, and the American Legion Colmar Manor Post 131 (collectively, "the Legion").[6] The Legion is a private organization focused on "Americanism" and the armed forces. J.A. 1469.

         Appellants sued the Commission under 42 U.S.C. § 1983, alleging the Commission's display and maintenance of the Cross violates the Establishment Clause. Appellants seek a declaratory judgment that this conduct violates the Establishment Clause and Appellants' constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, [7] nominal damages, and attorney's fees and costs.

         Appellants and Appellees filed cross-motions for summary judgment, and the district court granted summary judgment to Appellees. In doing so, the district court analyzed Appellants' claim pursuant to Lemon v. Kurtzman, 403 U.S. 602 (1971). It held the Commission owned the Cross and land for a legitimate secular reason, that is, to maintain the highway median. The district court also identified a second secular purpose, which is to commemorate the 49 World War I soldiers from Prince George's County.[8]

         The district court next determined that the Cross neither advanced nor inhibited religion because (1) the Cross has been primarily used for veterans' events; (2) crosses are generally regarded as commemorative symbols for World War I, at least overseas; (3) secular war memorials surround the Cross; and (4) the Cross has secular attributes, such as the Legion symbol on the face of the Cross. Finally, the district court concluded the Commission's display and maintenance of the Cross did not amount to excessive entanglement with religion because the Cross was not a governmental endorsement of religion. At bottom, the district court viewed the Commission's maintenance of the Cross as relating to traffic safety and veteran commemoration rather than religion. Appellants timely appealed.

         III.

         We review de novo a district court's grant of summary judgment. See Elderberry of Weber City, LLC v. Living Centers-Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015). "In doing so, we apply the same legal standards as the district court, and view all facts in the light most favorable to the nonmoving party." Certain Underwriters at Lloyd's, London v. Cohen, 785 F.3d 886, 889 (4th Cir. 2015) (alterations and internal quotation marks omitted).

         IV.

         Appellants contend that the Cross is a war memorial that favors Christians to the exclusion of all other religions. In response, Appellees frame Appellants' claim as promoting a strict rule that crosses on government property are per se unconstitutional, which they assert threatens memorials across the Nation.

         A.

         As an initial matter, Appellees question whether Appellants have standing to bring this claim. They argue that Appellants have not "forgone any legal rights, " such as "the right to drive on the public highways running through [the] Veterans Memorial Park" "to avoid contact with the memorial." Appellees' Br. 46 n.12. Appellees' standing argument lacks merit.

         An Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury. See Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997); see also Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 582 (4th Cir.), cert. granted, 137 S.Ct. 2080 (2017). Specifically, in religious display cases, "unwelcome direct contact with a religious display that appears to be endorsed by the state" is a sufficient injury to satisfy the standing inquiry. Suhre, 131 F.3d at 1086.

         The non-AHA Appellants have standing because they allege specific unwelcome direct contact with the Cross; that is, they have each regularly encountered the Cross as residents while driving in the area, the Commission caused such injury by displaying the Cross, and the relief sought -- enjoining the display of the Cross -- would redress their injury. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); see also ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, 1108 (11th Cir. 1983) (determining one plaintiff had standing because a Latin cross was clearly visible from "the porch of his summer cabin" and from the roadway he used to reach the cabin). The AHA also has standing. An association has standing to sue on behalf of its members if they would have standing to sue on their own, the association seeks to protect interests germane to its purpose, and neither the claim asserted nor the relief requested requires its individual members to participate in the lawsuit. See Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977); ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 429 (6th Cir. 2011). Here, the AHA has members in Prince George's County who have faced unwelcome contact with the Cross. These interests are germane to the AHA's purpose of maintaining the separation of church and state, and the claim and relief sought do not require individual participation. Appellants thus have standing to sue, and so we turn to the merits of this case.

         B.

         The Establishment Clause provides, "Congress shall make no law respecting an establishment of religion . . . ." U.S. Const. amend. I. This clause thus guarantees religious liberty and equality to people of all faiths. See Cty. of Allegheny v. ACLU, 492 U.S. 573, 590 (1989), abrogated on other grounds, Town of Greece v. Galloway, 134 S.Ct. 1811 (2014).

         We have generally analyzed Establishment Clause issues pursuant to Lemon v. Kurtzman, 403 U.S. 602 (1971). See Buxton v. Kurtinitis, 862 F.3d 423, 432 (4th Cir. 2017); Lambeth v. Bd. of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005); Mellen v. Bunting, 327 F.3d 355, 370 (4th Cir. 2003). Per Lemon, to comply with the Establishment Clause, a challenged government display must (1) have a secular purpose; (2) not have a "principal or primary effect" that advances, inhibits, or endorses religion; and (3) not foster "an excessive entanglement between government and religion." Lambeth, 407 F.3d at 269-73 (internal quotation marks omitted); see Lemon, 403 U.S. at 612-13. "If a state action violates even one of these three prongs, that state action is unconstitutional." Koenick v. Felton, 190 F.3d 259, 265 (4th Cir. 1999) (citing N.C. Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991)); see also Buxton, 862 F.3d at 432.

         However, Appellees dispute Lemon's application here, arguing that, instead, the Supreme Court's holding in Van Orden v. Perry, 545 U.S. 677 (2005), controls. In Van Orden, the Court addressed whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. See 545 U.S. at 681. The monument, located between the Texas Capitol and the Texas Supreme Court building, also displayed an eagle grasping the American flag, two Stars of David, Greek letters representing Christ, and an inscription indicating that a private organization donated the monument. See id. at 681-82. The monument stood six-feet high and three-and-a-half feet wide, and sat among "17 monuments and 21 historical markers commemorating the people, ideals, and events that compose Texan identity, " id. at 681 (internal quotation marks omitted), such as monuments of the Heroes of the Alamo, the Texas National Guard, and the Texas Peace Officers, see id. at 681 n.1.

         A plurality of the Court first decided the Lemon test is "not useful" in the "passive" monument context. Van Orden, 545 U.S. at 686. Rather, it examined the role and historical meanings of God and the Ten Commandments in our Nation's history. See id. at 686-91. The plurality first noted President George Washington's Thanksgiving Day Proclamation of 1789, which "directly attributed to the Supreme Being the foundations and successes of our young Nation, " as an example of the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Id. at 686-87 (quoting Lynch v. Donnelly, 465 U.S. 668, 674 (1984)). It also recognized "the role of God in our Nation's heritage, " pointing to other Ten Commandment displays in federal buildings, including the Supreme Court's own courtroom and the Library of Congress, which reinforced the secular connection between our Nation and the Ten Commandments. See id. at 687-89. Though the Ten Commandments have religious significance, the plurality noted that the Ten Commandments were given to Moses, who "was a lawgiver as well as a religious leader." Id. at 690. Finally, the plurality viewed the placement of the monument on the Texas State Capitol grounds as "far more passive" when compared to other display cases, especially because the petitioner in Van Orden "walked by the monument for a number of years" before suing. Id. at 691. Taking all of these considerations as a whole, the plurality concluded that the display in Van Orden did not violate the Establishment Clause.

         Justice Breyer's concurrence, however, is controlling because it is the narrowest ground upholding the majority. See Marks v. United States, 430 U.S. 188, 193 (1977); A.T. Massey Coal Co. v. Massanari, 305 F.3d 226, 236 (4th Cir. 2002); see also Card v. City of Everett, 520 F.3d 1009, 1017 n.10 (9th Cir. 2008) (noting Justice Breyer's concurrence controls); Staley v. Harris Co., 485 F.3d 305, 308 n.1 (5th Cir. 2007) (same); Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 49 (2d Cir. 2011) (same); ACLU v. Grayson Co., 591 F.3d 837, 847 (6th Cir. 2010) (applying Van Orden and relying primarily on Justice Breyer's concurrence). The concurrence explains that courts should remain faithful to the "basic purposes" of the Establishment Clause by examining, for example, the circumstances surrounding the monument's placement, its physical setting, and the length of time it remains unchallenged. Van Orden, 545 U.S. at 698, 700-03 (Breyer, J., concurring). In addition, however, Justice Breyer clarified that the Lemon test continues to act as a "useful guidepost[]" in Establishment Clause cases involving monuments with both secular and sectarian meanings. Id. at 700. The controlling Van Orden decision thus did not overrule Lemon; to the contrary, Justice Breyer actually recognized Lemon as a "more formal ...


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